Tower Issues – Broadcast Law Bloghttps://www.broadcastlawblog.com
Discussion of FCC, copyright, advertising and other legal issues of importance to radio and television broadcasters and other media companies Wed, 13 May 2020 17:19:38 +0000en-US
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1 https://wordpress.org/?v=5.3.3&lxb_maple_bar_source=lxb_maple_bar_sourceComments Due June 12 on Proposal to Expand the Use of Distributed Transmission Systems by TV Stations Operating with ATSC 3.0 Transmission Systems – What is Being Asked?https://www.broadcastlawblog.com/2020/05/articles/comments-due-june-12-on-proposal-to-expand-the-use-of-distributed-transmission-systems-by-tv-stations-operating-with-atsc-3-0-transmission-systems-what-is-being-asked/
https://www.broadcastlawblog.com/2020/05/articles/comments-due-june-12-on-proposal-to-expand-the-use-of-distributed-transmission-systems-by-tv-stations-operating-with-atsc-3-0-transmission-systems-what-is-being-asked/#respondWed, 13 May 2020 17:19:38 +0000https://www.broadcastlawblog.com/?p=7285Continue Reading…]]>The FCC’s proposal to expand the use of Distributed Transmission Systems by television stations operating with the new ATSC 3.0 transmission system was published in the Federal Register today (here). That publication announces that the comment deadlines on the FCC’s DTS Notice of Proposed Rulemaking are due by Friday, June 12, 2020, and reply comments will be due by Monday, July 13, 2020. While we mentioned this proposal in passing when discussing a proposal to allow FM stations to use boosters to provide an FM version of a distributed transmission system, we have not written in detail about this proposal. With the comment deadline now set, let’s look at some of the questions asked in the rulemaking proposal.

First, it is worth explaining the concept of a distributed transmission system (sometimes referred to as a “single frequency network” as it uses multiple stations on the same frequency to reach its audience). Traditionally, television stations have operated with a single high-power transmitter from a location central to their coverage area. Thus, viewers close to the transmitter get the strongest signal, and that signal dissipates the further that a viewer gets from that central transmitter site. Station signals are protected from interference to a certain contour where it is assumed that the majority of viewers will be able to receive over-the-air an acceptable signal most of the time. But even at the edge of these protected contours, the FCC’s projections assume that many viewers will not be able to receive an acceptable signal at all times. Distributed transmission systems are already in use by television stations in certain markets to fill in holes in station coverage – and have been particularly useful in markets with irregular terrain where mountains or other obstructions preclude one centrally located transmitter from reaching audiences far from the transmitter site. Locating a second transmitter on the same frequency behind the terrain obstruction allows better reception for viewers who might otherwise not receive an acceptable over-the-air signal. However, currently, the DTS transmitters cannot extend the noise-limited protected contour of a station “more than a minimal amount” beyond that which the TV station would be predicted to have from a single centrally-located transmitter site. The NPRM in this proceeding, based on a petition filed by the NAB and America’s Public Television Stations (see our article here on the Petition for Rulemaking filed by these groups), looks to allow for wider use of DTS.

The proposal is to expand the area in which DTS transmitters could expand the service of a TV station. While the proposal would still require that the transmitter site of any DTS transmitter be located within the noise limited contour of the station from a centrally-located transmitter site, the requirement that the extension of the contour be no more than a minimal amount would change. Proponents of the expansion argue that DTS systems should be allowed to be used to better serve the residents of a station’s service area by providing more uniform strong signals throughout a station’s service area. Those on the fringes of a coverage area should not get weaker signals that those in the middle of the market. By providing stronger signals throughout the market, ATSC 3.0 proponents argue that the new services that can be provided by the new transmission system can better be enjoyed by all residents of the service area.

The FCC proposes that, for UHF stations, the expansion of the station’s service be allowed to what would be the 36 dBu contour of the centrally-located station (different limiting contours would be used for VHF stations). The Commission asks for comments on that choice of contour. It also asks for details about the benefits that such an expansion would provide, and costs that would be incurred.

But the NPRM also asks questions raised by parties who are unsure of the merits of any proposal for expansion of service by these TV stations. Would the greater spillover of the signal beyond the noise-limited contour (and the minimal amount of spillover now allowed) create the potential for interference with LPTV and TV translator stations? If so, how should that interference be treated? Is the spillover part of the primary signal of the TV station that would be allowed to interfere with the LPTV or translator operation, or would it need to protect these otherwise secondary signals?

Similarly, proponents of white spaces devices ask about the impact that expanded contours would have on service from their operations. The FCC even asks whether, by allowing stations to expand their coverage area, they are being granted rights to service that should be open to competing applications – asking how the “Ashbacker Doctrine” (which states that the FCC cannot award new licenses without providing an opportunity for competing applications) applies to these proposals. Here, as the 36 dBu contour of UHF stations is the contour at which a station would interfere with another station, some would argue that Ashbacker is not triggered as no service could be provided in these areas anyway.

Questions of timing, scope and implementation are also asked. Should these changes be implemented now, or should they wait until ATSC 3.0 is up and running and the FCC and operators have more experience with the service? Should LPTV, Class A and TV translators be able to provide similar DTS operations? Should the expansion even be allowed for stations that continue to operate in ATSC 1.0? Are there special considerations for signals of stations that may be hosting multiple licensees through some sort of channel sharing? Can single sites accommodate multiple licensees looking to provide DTS operations?

These and many other questions are teed up by the FCC in the NPRM. Interested parties now have a date by which they can weigh in on the many issues advanced by the FCC. Note the June 12 comment deadline and, if you have an opinion, now is the time to advance it as the Commission weighs this proposal.

]]>https://www.broadcastlawblog.com/2020/05/articles/comments-due-june-12-on-proposal-to-expand-the-use-of-distributed-transmission-systems-by-tv-stations-operating-with-atsc-3-0-transmission-systems-what-is-being-asked/feed/0Broadcast Stations Going Silent – What You Need to Dohttps://www.broadcastlawblog.com/2020/04/articles/broadcast-stations-going-silent-what-you-need-to-do/
https://www.broadcastlawblog.com/2020/04/articles/broadcast-stations-going-silent-what-you-need-to-do/#respondTue, 28 Apr 2020 15:51:01 +0000https://www.broadcastlawblog.com/?p=7260Continue Reading…]]>Taking a station off the air is often the last resort of a broadcast company in desperate financial times. While Payroll Protection Act loans have helped many small broadcasters avoid that action even in light of the dramatic decrease in broadcast advertising revenue in the last two months, and some relief may come in areas of the country looking at some reopening of business in the coming weeks, we have still heard of some stations that just can’t manage continued operations in this period of turmoil – either for financial or operational reasons caused by the current health crisis. If this action is in the cards for your station because of the pandemic or for any other reason including technical failures, do not forget about the FCC requirements for taking a station silent.

When a broadcast station goes silent, it must notify the FCC of that status within 10 days of going off the air. If the situation will continue for a longer period, a request for Special Temporary Authority providing the reasons for going off the air must be filed within 30 days of going silent. These STAs are granted for no more than 6 months at a time, so that date should be noted for the filing of any extension that may be needed. But be careful, as if a station is silent for a full year, Section 312(g) of the Communications Act provides that the license will be cancelled unless the FCC makes an affirmative finding that there are special public interest reasons for not taking that action (a finding made in very rare cases). When stations resume operations, they must notify the FCC that they are back on the air. But to be considered back on the air, there must be programming – running a test pattern is insufficient (see the case we wrote about here). Even with authority to remain silent, there are risks.

As described in cases that we wrote about here and here, stations that are off the air for prolonged periods, even with FCC authority, can risk the loss of their license if they come back on the air for only short periods (to avoid being off the air for a full year), then go silent again. During the license renewal review that is upcoming in many states, the FCC will look at how long a station has been off the air during the license period and, if it is a significant period, can determine that the station has not served the public interest, or grant a “short-term” renewal for something less than the full eight year term so that the FCC can review the licensee’s performance sooner (see our article here and another article here for examples of such a review).

Similar rules apply to stations that cannot meet the minimum operating schedule required for broadcasters. Note that there are special minimum operating rules for noncommercial stations requiring fewer hours per day of broadcasting, and allowing stations licensed to educational institutions to be off the air for periods for school holidays and other recess periods when students are not on campus. The FCC recently stated that schools without students on campus to run their stations during the pandemic can consider themselves to be in such a recess period (see our article here). But note that there are also risks of forced shared-time operations for noncommercial stations that do not operate regularly.

Also remember that tower lights need to be operating, even if a station is silent. Know the requirements for any station that is going silent, and be sure that you observe the obligations that the FCC imposes.

]]>https://www.broadcastlawblog.com/2020/04/articles/broadcast-stations-going-silent-what-you-need-to-do/feed/0FCC Consent Decree Requires $1,130,000 Payment to Settle Issues About Monitoring Tower Lights – Are You Doing What’s Required?https://www.broadcastlawblog.com/2020/01/articles/fcc-consent-decree-requires-1130000-payment-to-settle-issues-about-monitoring-tower-lights-are-you-doing-whats-required/
https://www.broadcastlawblog.com/2020/01/articles/fcc-consent-decree-requires-1130000-payment-to-settle-issues-about-monitoring-tower-lights-are-you-doing-whats-required/#respondThu, 16 Jan 2020 15:52:07 +0000https://www.broadcastlawblog.com/?p=7147Continue Reading…]]>Earlier this week, the FCC’s Enforcement Bureau released an Order approving a consent decree with Scripps Broadcasting where Scripps agreed to pay a penalty of $1,130,000 for perceived violations of the FCC’s rules requiring tower light monitoring for towers used by a number of TV stations that it had recently purchased. The company also agreed to adopt numerous procedures to insure continuing compliance, including notification to the FCC of future issues. The FCC began the investigation when a plane crashed into one station’s tower. While the FCC specifically states that it did not find any evidence that any of the “irregularities” in the tower monitoring process contributed to the plane crash, the crash opened the door to the FCC’s investigation of the company’s tower light monitoring process at all of its stations, leading to this fine. Are you ready for such an investigation?

In the consent decree, the Commission cites various tower-related FCC rules that must be observed by tower owners. The rules include Section 17.47(a), which requires antenna structure owners to monitor the status of a structure’s lighting system by either (1) making “an observation of the antenna structure’s lights at least once each 24 hours either visually or by observing an automatic properly maintained indicator designed to register any failure of such lights” or (2) by “provid[ing] and properly maintain[ing] an automatic alarm system designed to detect any failure of such lights and to provide indication of such failure to the owner.” That rule also requires that the tower owner inspect any automatic monitoring system at least once every 3 months to make sure that it is working correctly, unless the owner is using a system certified as reliable and not requiring such inspection by the Wireless Bureau of the FCC (see our articles here and here where FCC fines were issued when monitoring systems did not alert the tower owner of tower lighting issues).

The rules also require that the tower owner keep records of the required monitoring, including any instances where any required lighting is not operating (noting when the outage occurred and when it was repaired, and when FAA notice was provided). The FCC rules also require prompt notification to the FAA when certain lights have stopped operating – obviously so that the FAA can notify aircraft operating in the vicinity of the tower.

Part 17 of the rules also sets out painting requirements for towers, and requirements that many towers be registered with the FCC. In fact, in the Scripps case, part of the fine was based on Scripps’ failure to notify the FCC of the ownership change of some of the towers as required by the FCC tower registration rules (see our posts here and here about other fines for this violation).

One article like this cannot possibly set out all the tower lighting, painting, and monitoring rules. But the severity of the sanctions in this case demonstrates the obvious importance of these rules – and the need for each broadcaster to carefully review these rules and make sure that they are strictly complying with all of the requirements. Because of the safety risks, the FCC takes tower maintenance requirements very seriously (see our post here where we wrote about a notification from the FCC to tower owners that paying penalties was “not just a cost of doing business” but much more serious). Even companies that are merely leasing tower space have responsibilities to notify the FCC and FAA if their lessor is not performing its responsibilities to maintain the tower (see our post here). The risk of non-compliance is not only penalties like the one assessed in this case, but also potential civil liability in cases where there are incidents like the situation that started the investigation. Take your responsibilities seriously.

]]>https://www.broadcastlawblog.com/2020/01/articles/fcc-consent-decree-requires-1130000-payment-to-settle-issues-about-monitoring-tower-lights-are-you-doing-whats-required/feed/0FCC Adopts Changes to Rules for New Noncommercial FM and LPFM Stations – Changing Application Processing Procedures and Holding Periodshttps://www.broadcastlawblog.com/2019/12/articles/fcc-adopts-changes-to-rules-for-new-noncommercial-fm-and-lpfm-stations-changing-application-processing-procedures-and-holding-periods/
https://www.broadcastlawblog.com/2019/12/articles/fcc-adopts-changes-to-rules-for-new-noncommercial-fm-and-lpfm-stations-changing-application-processing-procedures-and-holding-periods/#respondTue, 17 Dec 2019 17:13:00 +0000https://www.broadcastlawblog.com/?p=7117Continue Reading…]]>Last week, the FCC adopted an order making numerous changes to its processes for selecting winning applicants among mutually-exclusive applicants for new noncommercial broadcast stations, including noncommercial, reserved band full power FM stations and LPFMs. Applicants are “mutually exclusive” when their technical proposals are in conflict – meaning that if one is granted it would create interference to the other so that the other cannot also be allowed to operate. The changes adopted by the FCC, which we wrote about when first proposed here, affect not only the process of applying for new noncommercial stations and the system for resolving conflicts, but also address the holding period for new stations once construction permits are granted, and the length of permits for LPFM stations.

In cases involving mutually exclusive applications for new noncommercial stations, the FCC uses a “points system” to determine which of the mutually-exclusive applicants should have its application granted. The point system relies on paper hearings to determine which applicant has the most points, awarding preferences on factors such as whether they have fewer interests in other broadcast facilities, whether they are local organizations, and whether they are part of state-wide networks.

The changes to the FCC process are described below.

The FCC eliminated the current requirement that NCE applicants include in their governing documents specific provisions obligating the applicant to maintain localism and diversity in order to receive points as “established local applicants” and for “diversity of ownership.” The current obligation requires that, in order to receive a “diversity credit” in their application, applicants need to have articles of incorporation or bylaws that specifically state that they cannot acquire new stations that would affect the credit they received in the FCC review of the applications. Localism must be maintained by provisions in organizational documents restricting the residence of board members. The FCC determined that including provisions in governing documents was unnecessary – the actual conduct of the applicant can be weighed by the FCC whether or not the company’s governing documents contain explicit restrictions.

The FCC will impose new transmitter site certification obligations on applicants for new stations – requiring applicants to certify on their application that they have received reasonable assurance of the availability of their proposed transmitter sites, and to provide a contact person for the entity that has provided such assurance. This decision merely clarifies an obligation that is already imposed on noncommercial applicants (see our articles here and here).

The FCC changed the NCE tie-breaker process by adding a new criterion favoring the grant of applications that were unsuccessful in receiving stations in prior FCC filing windows, if an applicant has no other broadcast interests. This criterion will be applied last, if all other tie-breaking criteria have not broken the points system tie.

It also changed the process for establishing mandatory time-sharing plans where ties in the comparative process remain after the points system was applied. Currently, full-power NCE station applicants who are tied in the FCC points system end up in a tie-breaker process (see, for instance, our article here that discusses the process). Where that process does not produce a clear winner, parties are often allowed to negotiate for years over the terms of a time-sharing agreement before the FCC intervenes to force a sharing arrangement. The FCC’s order sets a 90-day period in which such negotiations are to occur before mandatory time-sharing is imposed by the FCC. If there are more than three applicants, those that have the longest continuous period of existence will be included in the time share, with other applications dismissed.

The FCC modified the “holding period” during which NCE permittees must maintain the characteristics for which they received comparative credit. Specifically, if an applicant receives a “307(b) preference” for serving areas that have no noncommercial service or service from only one other noncommercial station, the applicant in the past has been forbidden from changing transmitter sites where it would lose service to some or all of the areas of proposed coverage for which it received a preference, even if that lost service is made up by service to new noncommercial white or grey areas. This restriction has prevented some successful noncommercial applications from constructing their new stations when proposed transmitter sites became unavailable and no alternative sites covering the exact same underserved areas were available. The Commission decided to do away with the prohibition, and will allow winning applicants to change sites as long as the underserved area in the new service area is as great as that from the site at which the permit was initially granted.

The FCC decided to reclassify as “minor” (1) all ownership changes to governmental applicants, provided that the change has little or no effect on such applicant’s mission, and (2) gradual board changes in non-stock and membership LPFM and NCE applicants. This eliminates issues that sometimes arise with long-pending applications when gradual Board changes result in a majority of the governing board of an applicant changing, which under FCC processing rules would result in dismissal of an application. The FCC has from time to time been forced to waive that rule (for instance in connection with the processing of applications from the 2003 FM translator window that ended up being dealt with in settlements more than a decade after they were filed). In the case of existing NCE stations, the FCC has taken the position that gradual changes in the Board of an applicant do not require a “long-form” transfer application that would otherwise apply to a major change in ownership (see our article here). The FCC decided to apply the same rules to the processing of applications for new stations.

The FCC eliminated certain tolling notification requirements and will toll NCE and LPFM broadcast construction deadlines without notification from the permittee, based on certain pleadings pending before, or actions taken by, the agency, including the need for international coordination (often an issue with applications in the Southwestern portion of the country where Mexican authorities are sometimes slow to clear proposals for new stations near the border that could impact current or planned Mexican stations). Currently, an applicant must ask the FCC for tolling to stop the clock on the time before the expiration of a construction permit. Inexperienced applicants acting without counsel often don’t realize that they need to request tolling, as do applicants who wrongly think that a tolling event may be able to be resolved quickly. By forgetting to ask for tolling, these permittees can lose out on potential time in which to construct their new stations. That will no longer be an issue with this change in the rules.

The FCC decided to extend LPFM construction permits from 18-months to a full three years, the same period that applies to other construction permits (a construction period which LPFM permittees can currently receive – but they have to timely request such extensions at the end of the initial 18-month construction period).

The FCC eliminated the current rules prohibiting the sale of unbuilt LPFM construction permits and requiring a 3-year holding period for newly licensed LPFM stations. The FCC instead will allow the assignment/transfer of LPFM permits and stations after an 18-month holding period as long as certain safeguards are met – including that there is no profit in the sale and as long as the new owner satisfies all FCC eligibility criteria (including offering the same comparative attributes as the original applicant if the CP was granted after a point-system analysis).

Obviously, there are many other details to these changes that should be carefully reviewed by any potential applicant for a new noncommercial station. These changes will become effective after the later of 60 days after publication in the Federal Register or after review under the Paperwork Reduction Act. But, once effective, these new rules should allow the FCC to once again open windows for applications for new noncommercial FM stations, something that has not occurred in many years.

]]>https://www.broadcastlawblog.com/2019/12/articles/fcc-adopts-changes-to-rules-for-new-noncommercial-fm-and-lpfm-stations-changing-application-processing-procedures-and-holding-periods/feed/0Comment Dates Set on FCC Proposal to Abolish Rule Prohibiting Exclusive Use of Unique Tower Siteshttps://www.broadcastlawblog.com/2019/11/articles/comment-dates-set-on-fcc-proposal-to-abolish-rule-prohibiting-exclusive-use-of-unique-tower-sites/
https://www.broadcastlawblog.com/2019/11/articles/comment-dates-set-on-fcc-proposal-to-abolish-rule-prohibiting-exclusive-use-of-unique-tower-sites/#respondWed, 06 Nov 2019 17:06:22 +0000https://www.broadcastlawblog.com/?p=7072Continue Reading…]]>At its October open meeting, the FCC adopted a Notice of Proposed Rulemaking looking to abolish its rule that bars a broadcast licensee from prohibiting a competitor from using a “unique” transmitter site that it controls. The rule was adopted decades ago and never used. It provides that a license renewal would not be granted to a broadcast licensee who controls a transmitter site that is the only site that could be used by a potential competitor and prohibits that competitor from using the unique site. Given that this rule has never been used, and that there are many more communications towers now than at any time in the past (as well as more broadcast stations), the FCC suggested that the rule was no longer needed to insure that new broadcast services could be provided to the public.

That NPRM has now been published in the Federal Register. Comments are due December 6, with reply comments due on December 23. Given the limited utility of this rule, we would expect few broadcasters will be rushing in to provide their comments on this FCC proposal. But, if this potentially affects your business plans going forward, you now know when you can file your comments in this proceeding.

]]>https://www.broadcastlawblog.com/2019/11/articles/comment-dates-set-on-fcc-proposal-to-abolish-rule-prohibiting-exclusive-use-of-unique-tower-sites/feed/0Two Week Extension of C-Band Satellite Dish Registration Deadlinehttps://www.broadcastlawblog.com/2018/10/articles/two-week-extension-of-c-band-satellite-dish-registration-deadline/
https://www.broadcastlawblog.com/2018/10/articles/two-week-extension-of-c-band-satellite-dish-registration-deadline/#respondThu, 18 Oct 2018 15:06:33 +0000https://www.broadcastlawblog.com/?p=6582Continue Reading…]]>The FCC yesterday announced a two-week extension of time, through October 31, 2018, for the registration of C-Band earth stations used by many radio and TV stations to receive programming. As we have written before, the FCC is trying to determine what users are in the C-Band (aka the 3.7-4.2 GHz band) as it is trying to maximize its use and may want to consolidate or otherwise modify protections afforded to existing users. Any user not registered by the deadline may not be protected against any future users of the spectrum. Because of the large influx of earth station applications filed near the deadline (which had been yesterday), the International Bureau Filing System (IBFS) in which the registrations were to have been filed experienced intermittent difficulties that prevented some applicants from filing their registrations. Thus, for those who waited until the last minute to file (or were affected by Hurricane Michael), you now have an additional two weeks – but we certainly would not count on any further extensions.
]]>https://www.broadcastlawblog.com/2018/10/articles/two-week-extension-of-c-band-satellite-dish-registration-deadline/feed/0FCC Reminds C-Band Satellite Dish Users – Including Broadcasters – To Register By October 17https://www.broadcastlawblog.com/2018/09/articles/fcc-reminds-c-band-satellite-dish-users-including-broadcasters-to-register-by-october-17/
https://www.broadcastlawblog.com/2018/09/articles/fcc-reminds-c-band-satellite-dish-users-including-broadcasters-to-register-by-october-17/#respondMon, 10 Sep 2018 15:56:43 +0000https://www.broadcastlawblog.com/?p=6537Continue Reading…]]>On Friday, the FCC issued a reminder to all operators “of fixed-satellite service (FSS) earth stations in the 3.7-4.2 GHz band that were constructed and operational as of April 19, 2018 that the filing window to license or register such earth stations closes on October 17, 2018.” This frequency band is commonly referred to as the “C-Band”, and many of the “FSS earth stations” are satellite dishes that receive programming used by both radio and TV stations. The FCC is exploring allowing additional users into this spectrum, and has warned that only registered users of the spectrum will be entitled to any protections against any new users who may be authorized. In Friday’s public notice, the FCC also noted that those being protected not only need to have been operating by April 19 and registered by October 17 to be protected, but those entities will need to certify that the information in their registrations is correct on a form that will be made available at some point in the future. Users who have already registered are urged to make sure that their registrations are accurate by October 17, as certain corrections will not be allowed after that date. So broadcasters using this spectrum to receive satellite-delivered programming should heed the FCC’s advice and register by October 17.
]]>https://www.broadcastlawblog.com/2018/09/articles/fcc-reminds-c-band-satellite-dish-users-including-broadcasters-to-register-by-october-17/feed/0December FCC Meeting to be an Important One for Broadcasters and Other Media Companieshttps://www.broadcastlawblog.com/2017/11/articles/december-fcc-meeting-to-be-an-important-one-for-broadcasters-and-other-media-companies/
https://www.broadcastlawblog.com/2017/11/articles/december-fcc-meeting-to-be-an-important-one-for-broadcasters-and-other-media-companies/#respondTue, 28 Nov 2017 16:26:29 +0000https://www.broadcastlawblog.com/?p=6150Continue Reading…]]>Last week, just before Thanksgiving, the FCC released the tentative agenda for its December meeting. From that agenda, it appears that the meeting will be an important one for broadcasters and other media companies. Already, the press has spent incredible amounts of time focusing on one item, referred to as “Restoring Internet Freedom” by the FCC, and “net neutrality” by many other observers. The FCC’s draft of the Order that they will be considering at their December meeting is available here.

The one pure broadcast item on the agenda is the Notice of Proposed Rulemaking, looking to determine if the FCC should amend the cap limiting one TV station owner to stations reaching no more than 39% of the national audience. The FCC asks a series of questions in its draft notice of proposed rulemaking, available here, including whether it has the power to change the cap, or if the power is exclusively that of Congress. The FCC promised to initiate this proceeding when it reinstated the UHF discount (see our articles here and here). In that proceeding, the FCC determined that the UHF discount should not have been abolished without a thorough examination of the national ownership cap – an examination that will be undertaken in this new proceeding if the NPRM is adopted at the December meeting.

Also on the agenda is a proposal in the FCC’s proceeding for the Modernization of Media Regulation, looking at whether the FCC should change some of the requirements on cable operators and other MVPDs for giving written notice to customers about changes in their operations. The FCC is examining whether other forms of notice, including electronic notice, might be a better option. The draft of the FCC’s proposal is here. As some of the required notices include notices of changes in TV stations carriage, broadcasters should take note of this proceeding.

The FCC is also looking to adopt a new event code for its EAS system – a Blue Alert to notify the public of an imminent threat to law enforcement personnel. This, of course, would affect broadcasters and their EAS obligations. The draft order is available here.

Finally, the FCC is looking at the process that wireless companies need to go through to locate antennas on “twilight towers,” those towers built during the period from 2001 to 2006 when the FCC had not adopted the full environmental and historical review process that proponents of new towers now need to go through. As broadcasters may own some of these towers, this item may be of interest to some. The draft of the FCC’s proposal to be considered at the December meeting is here.

All of these matters will be considered at the FCC’s December meeting, to be held on December 14. FCC Chairman Pai wrote a blog article here describing some of these matters to be considered at the meeting. Follow the action closely as the meeting is certain to be a lively one, and one deciding issues that are very important to many media companies.

]]>https://www.broadcastlawblog.com/2017/11/articles/december-fcc-meeting-to-be-an-important-one-for-broadcasters-and-other-media-companies/feed/0Commissioner O’Rielly Backs Further Review of Impact of New Law Requiring the Lighting of Short Communications Towershttps://www.broadcastlawblog.com/2017/03/articles/commissioner-orielly-backs-further-review-of-impact-of-new-law-requiring-the-lighting-of-short-communications-towers/
https://www.broadcastlawblog.com/2017/03/articles/commissioner-orielly-backs-further-review-of-impact-of-new-law-requiring-the-lighting-of-short-communications-towers/#commentsMon, 13 Mar 2017 16:10:32 +0000http://www.broadcastlawblog.com/?p=5824Continue Reading…]]>Last year, we wrote about legislation adopted by Congress telling the FAA to adopt rules to require the lighting of towers less than 200 feet tall located in rural areas. That legislation was designed to protect aircraft used for agricultural purposes like crop-dusting from collisions with such towers. The law surprised most of the broadcast industry as it was slipped into legislation dealing with other issues without any real notice or debate. Many in the communications industry wondered if the costs of implementing this rule was really justified by the harms it prevented. The questions raised by broadcasters and other communications users received support in a blog post on the FCC blog, here, from FCC Commissioner Michael O’Rielly, who raised questions about whether the facts about communications towers had been fully considered when the legislation was adopted.

His post is certainly worth reading – noting that communications towers between 50 and 200 feet are included in the scope of the legislation requiring this new lighting requirement, while wind turbines and electric towers are not, asking whether this disparate treatment was really justified. He states that as many as 50,000 existing communications towers could fall under the coverage of any rule adopted by the FAA to implement the law. While emphasizing his concern for air safety, the Commissioner urged more review of the need for any new requirements, noting that there appeared to be only 2 accidents last year involving small planes and a communications tower, and it was unclear in either case whether questions of visibility of the tower contributed to those incidents. He suggests a legislative fix or careful consideration of the issues by the FAA before the specific rules implementing the legislation are adopted – a suggestion with which most communications users no doubt agree.

]]>https://www.broadcastlawblog.com/2017/03/articles/commissioner-orielly-backs-further-review-of-impact-of-new-law-requiring-the-lighting-of-short-communications-towers/feed/2Rural Towers Under 200 Feet May Need to Have Lights Under New FAA Authorization Lawhttps://www.broadcastlawblog.com/2016/08/articles/rural-towers-under-200-feet-may-need-to-have-lights-under-new-faa-authorization-law/
https://www.broadcastlawblog.com/2016/08/articles/rural-towers-under-200-feet-may-need-to-have-lights-under-new-faa-authorization-law/#respondThu, 04 Aug 2016 15:56:16 +0000http://www.broadcastlawblog.com/?p=5508Continue Reading…]]>My law firm has long provided legal advice to companies that operate communications towers, and the lawyers involved in that practice area have alerted me to the following development which will require the marking and lighting of many towers not currently covered by such rules.

Broadcasters and tower companies have long relied on FAA rules that generally don’t require the lighting of towers under 200 feet in height except when these shorter towers may interfere with the flight path of an airport. So the vast majority of these short towers used by broadcasters (sometimes simply for mounting auxiliary antennas) and by other wireless users have not been lit. That apparently will change under the FAA Extension, Safety, and Security Act of 2016, passed by Congress earlier this summer and signed into law on July 15. Under provisions of this act, the FAA is required to adopt rules to require the marking and lighting of freestanding structures with heights of between 50 and 200 feet which are located in rural, undeveloped areas. The act refers to towers that will need to be marked and lit as “covered towers.” The new marking and lighting requirements will apply not just to new towers, but also to existing towers (after a one-year phase in period after the FAA’s new rules become effective).

So what is a “covered tower”? Essentially, the Act sets out the following definitions:

With “accessory facilities” mounted with antennas, sensors, cameras, meteorological instruments, or other equipment.

Location.

To be a “covered tower,” the structure must be located: (i) outside the boundaries of an incorporated city or town; (ii) on undeveloped land; or (iii) on land used for agricultural purposes.

“Undeveloped land” means “a defined geographic area where the [FAA] Administrator determines low-flying aircraft are operated on a routine basis.”

Exceptions. The following are not “covered towers”:

Structurers adjacent to a house, barn, electric utility station, or other building;

Structures within the curtilage of a farmstead (for those not familiar with land-use terminology, a “curtilage” is the developed area of a farm immediately surrounding a house or other dwelling where residents have an expectation of privacy – it does not include surrounding fields) ;

Structures that support electric utility transmission or distribution lines;

The new law was apparently adopted at the urging of rural flying groups, including those involved in crop dusting, members of which apparently have high rates of accidents. That is why there is the emphasis on rural towers – and the exclusions for those in developed areas where such planes are unlikely to be flying.

The FAA will be adopting rules implementing the act, setting out the specific requirements for marking and lighting, and further detailing the requirements for compliance with the act. From the effective date of the new rules, existing covered towers will have one-year to come into compliance.

As these new requirements may affect many broadcasters with tower facilities in rural areas, watch the developments with respect to these obligations carefully, and start making your plans now for compliance.